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rder of the Founders and Patriots of America 

No. 2. 




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The Battle of Lexington 

As looked at in London before 
Chief- Justice Mansfield and a jury 
in the trial of John Home, Esq., 
for libel on the British Government 

By Hon. John Winslow 



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Read before the New York 
Society of the Order of the 
Founders and Patriots of 
America, May 13th, 1897 





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Publications of the New York Society of the 
Order of the Founders and Patriots of America 

No. 2. 




The Battle of Lexington 

As looked at in London before 
Chief-Justice Mansfield and a jury 
in the trial of John Home, Esq., 
for libel on the British Government 



By Hon. John Winslow 



Read before the New York 
Society of the Order of the 
Pounders and Patriots of 
America, May T3th, 1897 

Monosraph 



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Columbia. Univ. Lib. 

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COPYRIGHT 1897, BY JOHN WINSLOW. 



PREFACE. 

The Order of the Founders and Patriots of America, 
is an Historical and Patriotic Society, consisting- of 
descendants of those who, within the first fifty years after 
the settlement of Jamestown, came to and settled in the 
eight colonies, which afterwards became parts of the 
United States. Its members are also required to show 
that their intermediate ancestors of the Revolutionary 
period adhered as patriots to the cause of the Colonies. 
In the month of February, 1896, a few gentlemen met in 
the Astor House, in New York City, and took the prelimi- 
nary formal steps toward the formation of the Order. 
On the 1 6th day of March, 1896, nine of those persons, 
namely: Edward N. G. Greene, Howard S. Robbins, 
Howard Marshall, Henry L. Morris, John Quincy Adams, 
Ralph E. Prime, Charles W. B. Wilkinson, Henry Hall 
and William W. Goodrich, met and founded the Order, 
and executed the Certificate' of Incorporation of the New 
York Society. A plan of organization of the Order, 
with a general Constitution and By-Laws for the Order, 
was prepared, and on the 17th day of April, 1896, was 
adopted by the New York Society. The latter then con- 
sisted of seventy-eight gentlemen, whose eligibility had 
been examined, and who had been invited by the Founders 
of the Order to join them as Charter Members, and par- 
ticipate in the formal organization. 

The plan embraced an Order, consisting of State 
Societies and Chapters, having a central representative 
body called the General Court. Since the organization of 
the Order, and of the New York State Society, societies 
have also been formed in New Jersey, Connecticut, Penn- 
sylvania and Massachusetts, and Chapters of the New 
State Society have been created in Albany and Syracuse. 

The first Governor of the New York Society was 
Col. Frederick Dent Grant, who was succeeded in turn 
by Col. Ralph Earl Prime, and he, in tiirn, by the incum- 
bent, Hon. William Winton Goodrich. 

The Officers of the New York Society for 1897-8 are as 
follows : 

3 

419027 



OFFICERS: 

Hon. WILLIAM WINTON GOODRICH, Governor, . Brooklyn 
CHARLES ALBERT HOYT, Deputy-Governor, . Brooklyn 

MATTHEW HINMAN. Treasurer, 359 Broadway, New York City 
HENRY LINCOLN MORRIS, Secretary, 

253 Broadway, New York City 
SAMUEL VICTOR CONSTANT, States-Attorney. 

New York City 
CoL. LEWIS CHEESMAN HOPKINS, Registrar, 

66 Broadway, New York City 
GEORGE ROGERS HOWELL, Historian, . . . Albany 
Rf.v. DANIEL FREDERICK WARREN, D. D., Chaplain, 

Jersey City Heights, N. J. 

COUNCILORS: 

ONE YEAR. 
CLARENCE LYMAN COLLINS, . . New York City 

Maj. ROBERT EMMET HOPKINS, . . . Tarrytown 
WALTER STUEBEN CARTER, .... Brooklyn 

TWO YEARS. 

Gen. FERDINAND PINNEY EARLE, New York City 

GEORGE CLINTON BATCHELLER. . New York City 

STEPHEN MOTT WRIGHT New York City 

THREE YEARS. 

Hon. JOHN WINSLOW, Brooklyn 

JONAS HAPGOOD BROOKS, .... Albany 

Gen. STEWART L. WOODFORD, New York City 

In the month of March, 1897, the New York Society 
invited the Hon. John Winslow, an associate of the Order, 
to read before the Society a paper on the legal aspects of 
the Battle of Lexington, as viewed in England at the 
time. He cheerfully acceded to the request, and was 
prepared to read his paper at the annual meeting held on 
the anniversary of that battle, but the circumstances were 
such that the reading was postponed to a special social 
meeting held at the Windsor Hotel, in New York City, on 
the evening of Thursday, the 13th day of May, 1897. 
The paper was regarded as a work of so much general 
interest and importance as to demand publication, and the 
Council of the New York Society appointed "a commit- 
tee, consisting of Col. Ralph E. Prime and Edward 
Hagaman Hall, to request our associate, Hon. John 
Winslow, to furnish a copy of his paper (on the legal 
aspects of the Battle of Lexington) for publication by our 
Society, and that this committee, in conjunction with the 



regular Printing Committee, have the paper published 
and distributed " 

Pursuant to the direction of the Council, the following 
correspondence ensued : 

63 Hawthorne Avenue, 

YoNKERs, N. Y., June 23rd, 1897. 
Hon. JOHN WINSLOW: 

Dear Sir :— It gives me great pleasure to inform you, 
that it is the earnest desire of the Council of the New York Society 
of the Order of the Founders and Patriots of America, that you 
would consent to the publication, as one of our historical papers, of 
your paper on the legal aspects of the Battle of Lexington, etc., 
recently read by you before that Society, at a social meeting held at 
the Windsor Hotel. I hope this will meet your pleasure. 

In furtherance of such measure, the Council appointed a com- 
mittee, consisting of the undersigned and Mr. Edward Hagaman 
Hall, to request your consent to the publication, and to ask of you 
a copy of the paper to be so published. 

We regard the subject matter of more than historical interest, 
and do not fail to recognize the fact that it will also be of great 
interest to the members of the legal profession. Hence we have in 
mind the issue of such a number of copies as will not only supply 
the members of our Society, but the public libraries, and also all 
those of your profession and mine who shall desire it. 

The Committee trusts that you will favorably answer the desire 
expressed. 

Assuring you of my own sincere regard, I beg to assure you 
also of the unaffected regard of your associates. 
For the Committee, 

Yours, etc., 
(Signed) RALPH E. PRIME. 



.^ ^ Brooklyn, N. Y., June 24th, 1807. 

Dear Col. R. E. PRIME: -t , y/ 

Referring to your kind and appreciative letter of the 23rd 
inst., I infer that the Council ask consent for the publication of my 
Lexington-London paper because, among other reasons, they 
believe it will be of service to our Society as a part of its pro])er 
work. This alone is sufficient to induce me to comply with the 
request. 

If I had known how much of time and research the paper would 
require, I might not, with other pressing engagements, have had 
courage for the work. The subject, I believe, has never before been 
presented as illustrative of the American Revolution, and of the 
view taken of it by British jurists. 

Very respectfully and truly yours, 

(Signed) JOHN WINSLOW. 



THE BATTLE OF LEXINGTON, as looked at in 
. London, in the trial of John Home, Esquire, before 
Chief Justice Mansfield and a jury, for libel on the BritivSh 
Government, is the subject to which your attention is 
called. It is easy enough for us, Americans, descendants 
of Revolutionary patriots, to see the battle with admiring 
eyes and grateful hearts. Some of us, perhaps, never 
stop to think, or care, how the thing appeared in London. 
While we look with reverence on the monuments at Lex- 
ington and Concord and Bunker Hill, it is not apt to occur 
to us that in London, and all Britain, our fathers appeared 
to be the most irreverent set of men that ever harassed 
a crown. It may be of some use, then, to see ourselves 
as others across the Atlantic saw us in the time of the 
Revolution. We may do so without in the least conceding 
anything to the credit of the British statesmen who 
advised the attempt of Great Britain to crush the North 
American Colonies. But, in looking at the other side, as 
it appears in the noted trial of John Home, Esq., we may 
possibly gain a larger view of what was involved in the 
struggle of the Revolution ; or, at least, we may see more 
clearly the environments of the time, and why the achieve- 
ments of our fathers seemed glorious to them, and do to 
us, and why, to the great men who controlled the British 
Government, the breaking away of the Colonies seemed 
one of the saddest chapters in history. We shall also find 
in this trial a significant chapter in the history of the long 
struggle for freedom of thought and speech in the nations 
not considered barbaric, more especially among English 
speaking people. We shall see that the treatment accorded 
Mr. Home by his government in the last quarter of the 
eighteenth century, was mild and humane compared with 
the drastic judgments in similar cases inflicted early in 
the seventeenth century, under the reign of the Stuarts, 
by their satellites, such as the Twelve Judges. Yet Lord 
Brougham, who was born s.bout the time Home was tried, 



saw and said, near the middle of the nineteenth century, 
that Home's punishment was an outrage upon the rights 
of personal freedom of opinion, thus showing the progres- 
sive history of what now to us seems axiomatic touching 
personal liberty. Some one has said that, in civilized 
nations, the most important of human affairs sooner or later 
get before a court and jury. And so it will be seen that 
the principles and leading causes of the Revolution came 
to be considered by Lord Mansfield and a jury in the trial 
of Home. The battles of Lexington and Concord were 
practically one battle. The objective on the part of the 
British was at least two-fold ; it was to seize some army 
stores in Concord, and also to seize two distinguished 
gentlemen, Samuel Adams and John Hancock, who were 
with Rev. Jonas Clark at Lexington, and were members 
of the Provincial Congress at Concord which had adjourned 
four days before the battle. The intended seizure was a 
failure. 

The defendant's name in the trial for libel is John Home, 
Esq., but in later life he was known as John Home Tooke, 
This change of name is explained by the fact that, in 
resisting with much ability an enclosure bill pending in 
the Commons, he gained the favor of Mr. Tooke. of Pur- 
ley, who said he would make him his heir, and so, in 1782, 
Home changed his name to Tooke as a token of esteem 
for his friend and patron, and received about 8,000 pounds 
from his property. But, inasmuch as in the trial under 
consideration he was known as John Home, Esq., he will 
be so referred to in this paper. Home, who was well 
known as a leader in politics, and a philologist, was born 
in Westminster in 1736, and died in 18 12. His father, a 
man of means, gave his son good opportunities for educa- 
tion at Westminster School, at Eton, and Cambridge 
University. Against his wish, but in obedience to his 
father, he took orders and was a curate in Kent. Having 
a strong liking for the law, he entered, in 1756, as a stu- 
dent at the Middle Temple, but soon after returned to the 
Church. Three years later he traveled on the continent. 
In 1765 he began his political life, writing pamphlets on 
public questions, and soon became intimate with Wilkes, 
the famous politician. He was active in supporting the 
election of Wilkes from Middlesex. In 1769 he was one 

8 



of the founders of the society for supporting the Bill of 
Rights ; soon after he became involved in quarrels with 
Wilkes which impaired his popularity. After consider- 
able opposition he received, in 1771, his degree of M.A. 
from Cambridge In 1773 he resigned his living, with 
the intention of studying law. 

Home bitterly opposed the British policy toward the 
American Colonies, and in the course of his opposition he 
wrote the famous advertisement which led to the accusa- 
tion, by the information of the Attorney-General, Lord 
Thurlovv, of libel on the King and Government. 

Lord Mansfield, early in the trial, referred to the battle 
of Lexington as "the occasion at Lexington," but later 
took a graver view. The descriptive lines of Humphrey, 
who was regarded by his cotemporaries as more especially 
the poet of the Revolution, reflected the colonial view : 

" As when dark clouds from Andes towering head, 
" Roll down the skies and 'round th' horizon spread, 
" With thunders fraught, the blackening tempest sails, 
"And bursts tremendous o'er Peruvian vales — 
" So broke the storm on Concord's fatal plain." 

"Then the shrill trumpet echoed from afar, 
" And sudden blazed the wasting flame of war, 
" From State to State, swift flew the dire alarms, 
"And ardent youths impetuous rushed to arms." 

When the news of the battle of Lexington reached 
London, Home was aroused, and denounced the attack 
made by General Gage, as murder, and proposed a sub- 
scription of 100 pounds, to be paid to Dr. Franklin for the 
American widows and orphans of the troops at Lexington 
and Concord. 

The standing of Home as a political critic is seen in 
the fact that the name of John Home Tooke appears in 
the long list of eminent names suspected of the authorship 
of the " Letters of Junius." To have been thus suspected 
was a high tribute to Home's intellectual force. It is not 
so easy now to comprehend the tremendous impression 
made by Junius as it was for his cotemporaries. To help 
in this respect, let us listen in the House of Commons to 
Burke, who thus graphically referred to it : 



" How comes this Junius to have broke through the 
cobwebs of the law, and to range uncontrolled, unpunished 
through the land ? The myrmidons of the court have 
been long, and are still, pursuing him in vain. They will 
not spend their time upon me or you. No, they disdain 
such vermin, when the mighty boar of the forest, that 
has broke through all their toils, is before them. But 
what will all their efforts avail ? No sooner has he 
wounded one than he la)^s down another dead at his feet. 
For my part, when I saw his attack upon the King, I own 
my blood ran cold. I thought he had ventured too far, 
and there was an end of his triumph. Not that he had not 
asserted many truths, but while I expected in this daring 
flight his ruin and fall, behold him rising still higher and 
coming down souse upon the two Houses of Parliament. 
Yes, he did make for his quarry, and you still bleed from 
the wounds of his talons ; you crouched, and still crouch 
beneath his rage. Nor has he dreaded the terrors of your 
brow, sir; he has attacked even you — he has, and I believe 
you have no reason to triumph in the encounter. In short, 
after carrying away our royal eagle in his pounces, and 
dashing him against a rock, he has laid you prostrate. 
King, Lords and Commons are but the sport of his fury." 

To have been supposed to be Junius, who could do 
such destructive work and send consternation among the 
leading British publicists, was a fine tribute to Home. 
One of the reasons that led some to think that Home was 
Junius was his bitter attacks upon Mansfield. Mansfield, 
and other legal advisers of the crown, labored assiduously 
to find how this '* boar of the forest," as Burke called him, 
could be brought to punishment. Burke himself was once 
charged with being the mysterious author, but denied it 
in the House of Commons. 

In about 1794, the Hon. John A. Graham, then a 
scholarly member of the New York bar, having occasion 
to visit England on ecclesiastical business for the Episco- 
pal Convention of Vermont, met, as he tells us, many 
eminent men, including Home, in whom he became 
much interested. Graham became impressed, as others 
were, that Home was Junius. After his return to Amer- 
ica, Mr. Graham studied quite elaborately Home's style 
of expression and thought and animus on public questions, 



and thus became more thoroughly convinced that Home 
was the mysterious writer. In 1828 Mr. Graham pub- 
lished a book on the subject, giving- his reasons in detail 
for his conclusion. In this book he speaks of his departed 
friend in cordial terms and with great respect, and says of 
him : "he now stands ' clariim et venerabile no7nen.' " In 
the course of his argument Graham says: " His genius 
was transcendent, his talents of the first order, his strug- 
gles for liberty sincere, his privations and sufferings 
great, and his patriotism was undoubted." In another 
connection Graham refers to Home's generous friendship 
for America. There is in this book a fine steel engraving 
of Home, which gives you the impression that he was a 
man of refinement, intelligence, and of solid character, 
Our venerable friend, Hon. Benjamin D. Silliman, of 
Brooklyn, tells me he remembers Mr. Graham very well. 
Lord Campbell, in referring to the trial, speaks of Home's 
"great acuteness and power of sarcasm." In Table 
TalkSy by Samuel Rogers, several instances are given of 
Home's wit and repartee. 

This seeming diversion is made that it might more 
■Icarly appear what manner of man Mansfield had to deal 
vv'ith, at the interesting trial when Home was a defendant 
charged with a vile libel on the Government. M.msfield 
for many years had been a powerful Tory in British poli- 
tics. That he was, all his public life, a man of great ability 
and learning, especially in jurisprudence, and much 
respected, is not questioned. His decision in the famous 
Somerset (slave) case in 1771, in favor of liberty, will be 
remembered. This is Lord Campbell's estimate of Mans- 
field as Chief Justice : 

"I think it must be admitted that he is one of the 
greatest who has ever appeared, and that while he impar- 
tially dealt out justice to the litigants who appeared before 
him, by the enlightened principles which he laid down 
and the wise rules which he established, he materially 
improved the jurisprudence of his country. This is surely 
fame little inferior to that of winning battles or making 
discoveries in science," 

While in a court room, Daniel Webster wrote a letter 
to his friend, Mr, Blatchford, in 1849, saying : 

" Mr, B, R, Curtis is now replying to Mr. Choate on a 



II 



law question. He is very clear, and has competent learn- 
ing. His great mental characteristic is clearness, and the 
power of clear statement is the great power at the bar. 
Chief Justice Marshall possessed it in a most remarkable 
degree, so does Lord Lyndhurst. If to this character of 
clearness you add fullness and force, you make a man, 
whether as a lawyer, an historian, or indeed poet, whose 
discourse or writing merits application of those lines 
of Sir John Denham's " Cooper's Hill : " 

"Though deep, yet clear; though gentle, yet not dull; 
Strong, without rage; without o'erflowing, full." 

Mr. Webster adds : "I think the judgment of Lord 
Mansfield came the nearest to this high standard. " 

When the troubles of his government with the Amer- 
ican Colonies began to be serious, there was no public 
functionary in Great Britain more ready to serve George 
the Third, or more certain of the speedy triumph of the 
Crown over the Colonies, than Lord Mansfield. Mansfield's 
prolonged and bitter controversies with Chatham, who 
tried in befriending America to serve his own country the 
better, give abundant evidence of his intense partisanship 
for the Crown in the struggle of the Colonies. Mansfield 
advocated the Stamp Act and aided in preparing it, and 
refused to listen to arguments for its repeal until, as he 
said, the Americans were first compelled to submit to the 
power of Parliament, and exhibit "the most entire obedi- 
ence before an inquiry could be had into their grievances." 
These and similar opinions made the Chief Justice a target 
for Junius, as his unmerciful attacks upon Mansfield show. 

British arrogance was shown in many ways, more 
before the surrender of Burgoyne than in the later years 
of the war, an instance of which was exhibited by Lord 
Stormont, whom Franklin and his associate, Mr. Dean, 
had addressed twice by letter m 1777 as to the cruel treat- 
ment of American prisoners, and proposals for exchange. 
The first letter of February 23d was not noticed by Stor- 
mont, but after another, of April 2d, was sent, his lordship 
wrote an insolent reply, saying : "The King's ambassa- 
dor receives no applications from rebels, unless they come 
to implore his Majesty's mercy." Franklin and Dean sent 
the letter back, saying: "In answer to a letter which 

12 



concerns some of the most material interests of humanity 
and of the two nations, Great Britain and the United 
States of America, now at war, we received the enclosed 
indecent paper as coming from your Lordship, which we 
return for your Lordship's more mature consideration. " 
This correspondence is given by Bigelow in his life and 
letters of Franklin, But in April, 1778, after Burgoyne's 
surrender, we find the tone changed, and overtures made 
to Franklin at Paris as to terms of peace. All this change 
from arrogance to anxiety came too late to help Mr. 
Home. Enough has been said to show by what animus 
Mansfield was moved in the trial of Home. Though the 
Colonies had many friends in England the war against 
them was popular there, and Mansfield's herculean efforts 
to crush the rebellion and maintain British ascendancy were 
generally approved. The prosecuting officer at the trial 
was Lord Thurlow, then the Attorney-General. Extended 
reference to the distinguished career of Lord Thurlow 
need not here be made. It is sufficient to say that in 
vigorously conducting the trial for the Government he was 
full of enthusiastic and savage loyalty to the King, and 
held the American Colonies in the usual Tory contempt. 

Here, then, we have a group of distinguished and 
eminent men taking part or coming into notice in this 
trial. There was Lord Mansfield, presiding, and his 
associate, Lord Aston, and Lord Thurlow prosecuting, as 
Attorney-General, aided by two able London lawyers. 
The defendant was a man of remarkable qualities, as we 
have seen. Then Dr. Franklin comes into notice as the 
proposed almoner of the fund raised by subscription for 
the Lexington sufferers. The battle of Lexington occurred 
about two weeks before Dr. Franklin's arrival back in 
America from London, where he had been in service as a 
representative of American interests, and especially as an 
agent of the Province of Massachusetts Bay. As all 
Europe knew, Franklin was a master mind in American 
affairs. Before this legal tribunal were the great ques- 
tions involved in the Declaration of Independence. It is 
not easy to find in legal history, a trial conducted by such 
eminent jurists and involving questums of such national 
importance. As the trial proceeded, the mighty power of 
British public opinion, supporting an arrogant King, was 



felt there and elsewhere. With such gigantic forces 
against him, poor Mr, Home had an unequal contest and 
a hard time. Few felt or dared to express sympathy for 
him. In short, Britain gave him the *' marble heart." 

The trial is reported in about thirty folio pages of the 
eleventh volume of ^^A Complete Collection of State Trials 
and Proceedings for High Treason and Other Offences,'' 
commencing with the nth year of the reign of King 
Richard the Second, and ending with the i6th year of the 
reign of King George the Third, published in London in 
1 78 1. The proceedings were published by the defendant, 
Mr. Home, from Gumey's shorthand notes. The first 
part of the trial, up to and including the verdict, was 
before a jury and Lord Mansfield as Chief Justice, and his 
associate, Aston, of King's Bench, at Guildhall. The 
second part of the trial, including argument on motion for 
judgment, was in the Court of King's Bench, Westminster. 
The trial before the jury began, as it happened, on our 
Independence Day, July 4th, and the later proceedings 
were on the 19th and 24th of November, 1777. The charge 
against the defendant, stated in plain terms, was that at 
a special meeting of the Constitutional Society, the de- 
fendant. Home, at King's Arms Tavern, Cornhill, June 
7th, 1775, during an adjournment of said Society, proposed 
that a subscription should be immediately entered into by 
such of the members present who might approve the 
purpose, for raising the sum of 100 pounds, to be applied 
to the relief of the widows, orphans and aged parents of 
our beloved American fellow subjects, who, faithful to the 
character of Englishmen, preferring death to slavery, 
were, for that reason only, inhumanly murdered by the 
King's troops at or near Lexington and Concord, in the 
province of Massachusetts, on the 19th day of April, 1775. 
It was further alleged that the sum was immediately col- 
lected, and it was thereupon resolved that Mr. Home do 
pay the next day into the hands of Messrs. Brownes & 
CoUinson, the said sum of 100 pounds, and that Dr. 
Franklin be requested to apply the same to the above 
mentioned purpose. Further technical allegations of the 
information of the Attorney-General were " that the 
said John Home, in contempt of our said Lord and King, 
and in open violation of the laws of this kingdom, to the 

14 



evil and pernicious example of all others in the like case 
offending, and also against the peace of our said present 
Sovereign Lord, the King, his Crown and dignity, did 
these things, and the said Attorney-General of our said 
Lord, the King, further gives the Court here to under- 
stand and be informed that said John Home, being such 
person as aforesaid, again unlawfully, wickedly, mali- 
ciously and seditiously, intending, devising and contriving, 
as aforesaid, afterwards, to wit : on the 9th day of June, 
in the fifteenth year aforesaid, with force and arms, at 
London aforesaid, in the parish and ward aforesaid, wick- 
edly, maliciously and seditiously printed and published, and 
caused and procured to be printed and published in a cer- 
tain newspaper, entitled ' The Morning Chronicle, mid 
London Advertiser,' a certain other false, wicked, mali- 
cious, scandalous and seditious libel of and concerning 
his said Majesty's government and the employment of his 
troops, according to the tenor and effect following, that is 
to say." The substance of the former allegation is here 
repeated, with the additional statement of the publication, 
and the newspaper's name. The form of the accusation 
was that of information in the King's Bench, by the 
Attorney-General, for libel. This proceeding is reached 
in our modern practice, in result, by indictment before a 
grand jury. The law of England permitted the Attorney- 
General to proceed by information, and not by indictment, 
if he so determined. The information goes on to allege 
the payment of the money raised to Dr. Franklin, for the 
purposes stated, and is signed by E. Thurlow,the Attorney- 
General. 

There seems to have been no difficulty in procuring a 
jury, and the proceedings opened by a long argument /rt? 
and con, on the question of the right of the Attorney- 
General to reply to the defendant's argument. This dis- 
cussion, though extended, is not important for the purposes 
of this paper. Lord Mansfield ruled that the Attorney- 
General could reply if he saw cause to do so. Near the 
close of the argument Lord Mansfield seems to have lost 
his patience, and said to Home : " There must be an end. " 
Mr. Horne replied : " Not of this objection?" Lord Mans- 
field said: "No, but an end of going out of the case. 
You must behave decently and properly." Mr. Horne 

15 



replied: "I will surely behave properly." Then Mr. 
Home, who seems to have been fond of satire, said: 
"Now, then, my Lord, I entreat you to let me 'decently' 
tell you of the situation you have put me into." The 
witnesses examined for the Government proved the hand- 
writing of the alleged libeller to be that of Mr. Home, 
and also the publication of the newspapers by the printers, 
and then the Attorney-General rested. Mr. Home was 
careful to prove, on cross-examination of one of the 
printers, that he told this printer that he asked no favors, 
and, if the Government intervened, to disclose at once 
who was the author of the circular and advertisement. 
The Attorney-General then rested his case, saying: " My 
Lord, we have done." Mr. Home then proceeded to 
address the jury, and in his first sentence hit the judge, 
saying: " I am much happier, gentlemen, in addressing 
myself to you, and believe I shall be much more fortu- 
nate, as well as happy, than in addressing myself to the 
judge," Abruptness between the bench and the bar 
seems to have been the style of that period, another 
instance of which was, when Dunning — afterwards Lord 
Ashburton — was stating the law to a jury at Guildhall, 
Lord Mansfield interrupted him, saying: " If that be law, 
I'll go home and burn my books." "My Lord," replied 
Dunning, "you had better go home and read them." 
Home reminds the jury that the verdict must be their 
own, and not the judge's. He complains that the proceed- 
ings against him are by information of the Attorney- 
General ex-officio. He says, that by information the 
Attorney-General may accuse whom he pleases, and what 
he pleases, and when he pleases, and all this without 
resort to a grand jury, and that because it is the pretended 
suit of the crown. He urged that he ought not to be 
accused on the ipse dixit of the Attorney-General, but 
■upon the oaths of witnesses that are called before a grand 
jury upon their responsibility when they find an indict- 
ment. It seems that at this moment the notorious Mr. 
Wilkes was sitting near Lord Mansfield on the bench, and 
having some pleasant conversation, accompanied by smiles, 
though in former years Mansfield and Wilkes had been 
intensely antagonistic. Home mentions that they are 
both laughing, he supposes, at his expense. He declares 

i6 



that he will say " murder " again and again, when troops 
kill people unlawfully. He says that if there was no war 
in America, when the people at Lexington were killed, 
then it is right to call it "murder," and urges that it 
could not be said there was a war until after General Gage 
issued his proclamation of warning, which was after the 
battle of Lexington. Before that, America did not know 
it; how, then, could he, Mr. Home, be expected to know it? 
Home said to the jury: "Gentlemen, I shall desire, 
by-and-by, for your satisfaction and mine, to find out 
whether there is one man in the country that believes 
me guilty of the crime laid to my charge ; a crime that is 
to have a punishment which is called by the law a tem- 
porary death, and exclusion from society, imprisonment." 
He charged that the apparent object of this prosecution 
is "to take what little money out of my pocket I may 
have there, and to imprison me and exclude me from 
that society of which I have rendered myself im worthy. " 
It gives him pleasure, he says, " to see that there is" 
(referring to Wilkes) "by the judge who is now trying me, 
a gentleman who, as well as myself, has charged the 
King's troops with murder; a charge which, at that time, 
excited great abhorrence and detestation against him. 
The judge and that gentleman have enjoyed each other's 
company exceedingly." This remark caused laughter in 
the audience. "Well, gentlemen," turning towards Lord 
Mansfield and Mr. Wilkes, "I have caused another laugh 
between the gentlemen. It gives me pleasure to think, if 
I am to come out of prison — if you are so kind as to put 
me there — I, too, may have the honor, if it be one, of 
sitting cheek by cheek with the judge, and laughing at 
some other libeller." In the course of his four hours' 
argument Mr. Home declares this oppressive prosecution 
against him b)' the Attorney-General, who is the tool of 
the Minister, is not for crimes against the constitution, 
but for partial political opinions, and they who are pil- 
loried or imprisoned to-day may be, for the same act, 
pensioned to-morrow, just as the hands change; if this 
party goes down, it. is libel ; if it comes up, it is merit. 
He asserts that it was true, that under a good Minister 
there are no prosecutions for libel ; under a bad Minister, 
you meet with little else. He takes the ground that what 

17 



might be a libel if written now, may not have been a libel 
at the time it was written ; in other words, his view was 
that when he published his advertisement in the news- 
papers, it was not really understood that there was a war 
in America ; but now that the war has been going on for two 
years, if a similar publication were made it would be more 
open to the charge of libel on the King and Government. 
It seems that the Government had previously put the 
printers on trial, where there was a conviction and a 
sentence, but the sentence was suspended, and referring 
to this, he says: "If they justify their sentence on the 
printers, I will justify the Court for the most ample 
punishment they can inflict on me. If I am guilty, no 
man on earth so guilty; it was the most deliberate 
act of my life ; it was thought of long before I did it. I 
made the motion ; I caused the meeting ; I subscribed a 
great part of the money ; I procured the rest from my 
particular intimate friends." He argues that the work of 
the Attorney-General, in pushing the prosecution, is not 
creditable to him or his Government, and that what 
occurred at the so-called battle of Lexington was, in fact, 
murder. He then reads in evidence, a report of the bat- 
tle, by an officer in the British army, who took part in it, 
one Captain Edward Thoroton Gould. I do not remember 
to have seen this report of the battle in any American 
book, and, as it is short and easily understood, will read it. 
"I, Edward Thoroton Gould, of His Majesty's Own 
regiment of foot, being of lawful age, do testify and 
declare, that on the evening of the i8th instant, under 
the orders of General Gage, I embarked with the light 
infantry and grenadiers of the line, commanded by Colonel 
Smith, and landed on the marshes of Cambridge, from 
whence we proceeded to Lexington. On our arrival at 
the place, we saw a body of provincial troops, armed, to 
the number of sixty or seventy men. On our approach, 
they dispersed, and soon after firing began ; but which 
party fired first I cannot exactly say, as our troops rushed 
on, shouting and huzzaing previous to the firing, which 
was continued by our troops so long as any of the provin- 
cials were to be seen. From thence we marched to 
Concord. On a hill near the entrance of the town we 
saw another body of the provincials assembled. Six 

i8 



companies of light infantry were ordered down to take 
possession of the bridge, which the provincials retreated 
over. The company I commanded was one. Three 
companies of the above detachment went forward about 
two miles. In the meantime the provincial troops 
returned to the number of about three or four hundred. 
We drew up on the Concord side of the bridge. The 
provincials came down upon us, upon which we engaged 
and gave the first fire. This was the first engagement 
after the one at Lexington. A continued fire from both 
parties lasted through the whole day. I, myself, was 
wounded at the attack of the bridge, and am now treated 
with the greatest humanity and taken all possible care of 
by the provincials at Medford. 

(Signed) Edward Thoroton Gould." 

It will be seen, in all Home's contention, that upon this 
statement of the battle of Lexington, by a British officer, 
that it appears that the British were the aggressors; that 
they fired upon the people without any justifiable provoca- 
tion, and what the British troops did, therefore, in killing, 
was, in fact, murder. In this connection it may be stated, 
as a justification of this view, to some extent, that not only 
had the press of America declared it to be murder, but 
some of the London papers were saying so, so that if 
Home fell into a legal -error in thus characterizing the bat- 
tle, he had considerable authority for his view. Home says 
that he bases his action upon principle ; he says he has ac- 
cused the Government ' ' because I thought it my duty ; my 
motive has been constantly the same ; I know no America. " 
He quotes Solon as saying, when asked which was the best 
government, "Where those who are not personally injured 
resent and pursue the injury or violence done to another 
as he would if done to himself. That," said Home, "was 
the best kind of government, and Solon had a law passed 
empowering men to do so. By our laws, the whole of the 
neighborhood is answerable for the conduct of each. Our 
laws make it each man's duty and interest to watch over 
the conduct of all. This principle and motive has been 
represented in me as malice. It is the only malice they 
will ever find about me. They have, in no part of my life^ 
found me in any court of justice upon any personal 

J9 



contest or motive whatever, either for interest, or profit, or 
injury." Home then denied that he had charged the 
King's troops with murder. The point was that he had 
intended to so charge the King's government. 

Referring to Lexington, Franklin also speaks of 
"murder" in a letter to his friend, Wm. Strahan, dated 
at Philadelphia, July 5th, 1775, saying: "You are a mem- 
ber of Parliament, and one of that majority which has 
doomed my country to destruction. You begun to burn 
our towns and murder our people. Look upon your hands ; 
they are stained with the blood of your relatives. You 
and I were long friends; you are now my enemy, and I am 
yours. * ' On the question of ' ' murder, " Home continues : 
"And now, gentlemen, picture to yourself the Americans 
of Lexington and Concord, sleeping quietly in their beds, 
their wives and their infants by their sides, roused at the 
dead of night with an alarm that a numerous body of the 
King's troops (their numbers, perhaps, augmented by 
fear and report), were marching toward them, by surprise, 
in a hostile manner. These troops, who might not be 
brought to justice by them for any murders which they 
might commit. What shall they do ? Shall they take to 
flight, and leave the helpless part of their family behind 
them, or shall they stay and submit themselves and their 
families to the licentiousness of these ruffians? I suppose 
there might be among them (as among us) some of both 
these sorts ; it is, however, for the honor of human nature, 
that there were also some of another temper, and they 
hastily armed themselves as well as they could. There 
is nothing surely in this that will justify the slaughter of 
them which ensued. You will please to observe the time 
when this happened, for it is a very striking fact. As 
soon as the Act of Parliament, exempting them from the 
trial for murder in America, got to America, and the 
weather would permit them, the troops did instantly, with- 
out delay, do these murders with which I now charge 
them. That Act of Parliament was proposed by the confi- 
dential friend of my judge, Lord George Germaine, and 
the Attorney and Solicitor-General were instructed to bring 
in the Bill he proposed in the Committee. The General 
of the army was at that time the Civil Governor of the 
town. " Home said that the charge that the King's troops 



committed murder was published in the London news- 
papers of May 30th and 31st, 1775, and he believed it to 
be true. The charge was supported by affidavits taken 
on the spot and lodged with the Lord Mayor of London, 
and signed by Mr. Arthur Lee. I have read enough, per- 
haps, to indicate the tone and general idea of Home's de- 
fence. As Home had apparently concluded, the Attorney- 
General began to address the jury in reply, when Home 
rose and addressed Lord Mansfield, saying that he was 
ashamed to say that he had forgotten to examine some 
witnesses, but hoped the Attorney-General would consent 
that he might now do so. The Attorney-General replying 
that he should "object, except he should open to what 
points he meant to call them." Lord Mansfield replied: 
"You had better not object, Mr. Attorney-General, you 
had better hear his witnesses." And it was so ordered. 
"Call your witnesses," said the Court. "I call the 
Attorney-General," said Home. "Oh, you cannot examine 
the Attorney-General," said Mansfield. " Does 3'our 
Lordship so deliver that as the law ? My Lord, I call 
the Attorney-General and desire that the book may be 
given to him." An extended colloquy went on, and Lord 
Mansfield ruled that he could not force the Attorney- 
General to be examined. Then Home called Lord George 
Germaine, and it was said that he had gone to Germany. 
"Yes," said Home, " he has gone to Germany, too, I sup- 
pose, with General Gage." Then Mr. Alderman Oliver 
was called and sworn as a witness. His testimony related 
to what took place in the Constitutional Society, as to 
raising the 100 pounds and publishing the advertisement. 
Sir Theodore Stephen Jannsen, a subscriber to the fund, 
was called, and proved nothing but what Home had 
already admitted to be true. A Mr. Wm. Lacey was called, 
who proved that the 100 pounds was duly paid over to be 
used by Dr. Franklin, and the receipt of the bankers was 
produced. 

Mr. Edward Thoroton Gould was sworn, and he gave 
some account of the battle, the substance of which is em- 
bodied in his report. One curious question is asked of 
Gould. " Pray, do you know that the Americans, upon 
that occasion, scalped any of our troops ? " Answer: " I 
heard they did it; I did not see them." Question: " From 



whom did you hear it ? " Answer: " From a Captain that 
advanced up the country." Home asked officer Gould: 
" Did you know, had you any intelligence that the Ameri- 
cans of Lexington and Concord were at that time march- 
ing, or intending to march, to attack you at Boston ? " 
Answer: "We supposed that they were marching to 
attack us from continued firing of alarm guns, cannon, as 
they appeared to be such from the reports." Lord Mans- 
field: "Cannon? " Answer: "Cannon." Question: "When 
was that ? " Answer: " As soon as we begun the march, 
early in the morning." In charging the jury. Lord Mans- 
field emphasized the fact, that "cannon" were used by 
the provincials, thus confirming the idea of intended war 
and justification of the British shooting, which view did 
not please Home. After some further questions to Officer 
Gould, Home announced that he was through, and rested 
his case. Then came the address of the Attorney-General 
to the jury, fiercely urging a conviction. What the 
Attorney-General's contention was, need not be related at 
length. It is obvious that it would be, as it was, an able, 
eloquent, and earnest assault upon Mr. Home, for libeling 
the King and the Government, in proposing that the fund 
should be applied to the relief of the widows, orphans, and 
aged parents of "our beloved American fellow-subjects," 
who, faithful to the character of Englishmen, preferring 
death to slavery, were, for that reason only, inhumanly 
murdered by the King's troops, at or near Lexington and 
Concord, in the Province of Massachusetts. The Attorney- 
General exclaims: "What does that evidence amount to ? 
Why, that the King's troops, under the command of General 
Gage, were in a hostile country, and that it was impos- 
sible for them to go upon any service, ordered by their 
general and conducted by his officers, without an attack ; 
that the moment they went out of Boston alarm guns were 
discharged, in order to rouse the power that possessed 
the country, and to make the attack upon them, and this 
is the medium by which it is to be proved, that the soldiers 
who were ordered by their commander to advance from 
their post at Boston into that country, were guilty of mur- 
der, because they were surrounded, upon the i8th and 
19th of April, in consequence of those alarm guns, with an 
armed force on the other side, in order to withstand and 



oppose their operations, they being at that time in a hos- 
tile country. Why, if I had meant, if I had thought it 
consistent with law or with reason, to enter into a dis- 
cussion of that question with him, whether he is a libeller 
or not, for having charged them with murder, by a printed 
paper, instead of charging them in a more direct way ; if 
I had thought it necessary to establish the case against 
him in the strongest and most precise manner, it would 
have been by calling just such a witness as that, in order 
to prove that the troops were themselves attacked, and 
that upon the moment of their going out of the place, they 
were surrounded by hostile people. But, * necessity, ' it 
seems — necessity, according to Home's notion of the law — 
is that which his defense prescribes; that a man must go 
to the wall who is attacked; he must fly first, and, if he 
can escape by flight, then he shall not justify himself by 
turning and repelling the attack. That the King's troops, 
when they heard the alarm guns and were attacked, were 
to fly, to get to the wall and drop their arms. This is the 
notion of military disposition in a hostile country, and this 
is the law that the learned gentleman has learned from the 
state trials, the source of his reading, and which he has 
set forth with a dexterity and a species of understanding 
which is peculiar to him." 

Again, the Attorney-General says "that no one doubts 
but that the intention constitutes the criminality of every 
charge of every denomination and kind ; but the extreme 
ridicule of the thing is in his talking of that doctrine 
upon an information like this. See what it is : The 
words are, 'that the American subjects, for meritorious 
considerations upon their part, and for those consider- 
ations only, were inhumanly murdered at Lexington 
and Concord, in the province of Massachusetts Bay.' 
Nobody can doubt in the world, but that imputing 
inhuman murder to the attack of those troops is abuse. 
I suppose he did not mean it as flattery, to extol them, to 
deliver them down to posterity (if such paragraphs as 
these have any chance of reaching down to posterity) in 
terms of heroism. He meant to abuse. The words 
themselves are abuse, and then, I say, when words of 
direct, unqualified, indubitable abuse are printed concern- 
ing any man alive, the very circumstances of printing 

23 



calumny concerning a man, carries along with it an 
intention to abuse him. Why, it is nonsense to doubt it. 
One may spin words till one loses the meaning of a sen- 
tence and the first words that are used in the sentence, 
but it is nonsense to deny when you use direct abuse ; 
when you revile them in the very attempt to justify the 
charge and again use terms of abuse, that those terms of 
abuse do not prove intention of abuse; prima facie at 
least they will." 

And so the Attorney's address went on, based, of 
course, upon the assumption that the people of America 
were vile rebels who were taking up arms against the 
British Government without just cause, and that it was 
a terrible offence for the defendant to commit, to uphold 
these men after they began to perpetrate their offences 
of disorder and open rebellion, as they did from the 
British standpoint at Lexington and Concord. Finding 
Home a man of considerable attainments, and not a little 
influence, using the press in favor of the provincials, and 
raising money to support their widows and orphans and 
aged parents, and accusing the Government and the King's 
troops of murder in the battle of Lexington, there was 
nothing left, said the Attorney-General, to do, but to 
bring on this prosecution that such an offence as Home's 
might be duly punished. 

When Lord Mansfield came to charge the jury, he said 
the question was: "Did Home compose and publish — 
that is, was he the author and publisher of it ? " As to 
that, he said, there can be no question, as the proof was 
clear, and Home did not deny it. He then said: " there 
remains nothing more but that which reading the paper 
must enable you to form an opinion on, superior to all 
arguments in the world, and this is the sense of the paper, 
that arraignment of the Government and the employment 
of the troops upon the occasion of Lexington mentioned 
in that paper. Read it. You will form the conclusion 
yourselves. What is it ? Why it is this : that our beloved 
American fellow-subjects (therefore innocent men) in 
rebellion against the State — they are our fellow-subjects — 
but not so absolutely beloved without exception. Beloved 
to many purposes ; beloved to be reclaimed ; beloved to be 
forgiven ; beloved to have good done to them, biit not 

24 



T)eloved so as to be abetted in their rebellion. And there- 
fore that certainly conveys the idea that they are innocent. 
But, further, it says that they were inhumanly murdered 
at Lexington by the King's troops, merely on account of 
their acting like Englishmen and preferring liberty to 
slavery. " 

Again, he says: "The unhappy resistance of the legis- 
lative authority of this kingdom by many of our fellow- 
subjects in America, is too calamitous an event not to be 
impressed upon all your minds ; all the steps leading to it 
are of the most universal notoriety. The legislature of 
this kingdom have avowed that the Americans rebelled 
because they wanted to shake off the sovereignty of this 
kingdom. They profess only to bring them back to be 
subjects, and to quell rebellion. Troops are employed, 
money is expended upon this ground ; that the case is 
here between a just government and rebellious subjects, 
for a just and good purpose, for the benefit of the whole. 
If I do not mistake, the first hostilities that were com- 
mitted, (though many steps leading to them existed 
before), were those upon the 19th of April, 1775. If some 
soldiers, without authority, had got into a drunken fray, 
and murder had ensued, and this paper could relate to that, 
it would be quite a different thing from the charge in the 
information, because it is charged as a seditious libel, 
tending to disquiet the minds of the people. Now, what 
evidence has Mr, Gould given ? " 

The judge then repeated Officer Gould's statement. 
In considering this libel, the judge told the jury that they 
must judge whether it contains a harmless, innocent 
proposition for the good and welfare of this kingdom, the 
support of the legislative government, and the King's 
authority according to law, or, whether it is not denying 
the Government and legislative authority of England, and 
justifying the Americans, averring that they are totally 
innocent, and that they only desire not to be slaves ; not 
disputing to be subjects, but that they desire only not to be 
slaves, and that the use that is made of the King's troops 
upon this occasion \vas to reduce them to slavery. And 
if it was intended to convey that meaning, there can be 
little doubt whether that is an arraingment of the Govern- 
ment and of the troops employed by them or not. But 

25 



that is a matter for your judgment. You will judge of 
the meaning of it. You will judge of the subject to which 
it applied and connect them together, and, if it is a criminal 
arraignment of these troops acting under the orders of the 
officers employed by the Government of this country to 
charge them with murder of innocent subjects, because 
they would not be slaves, you will find your verdict but 
one way ; but, if you are of the opinion that the contest 
is to reduce innocent subjects to slavery, and that they 
were all murdered (like the cases of the noted murders of 
Glencoe, and twenty other massacres that might be 
named), why, then you will form a different conclusion, 
with regard to the meaning and application of this paper. 
I pass over a great deal that was said, because it ought 
not to have been said. " 

The jury withdrew about five o'clock, and returned 
into court about half an hour after six ; and gave in their 
verdict that the defendant was guilty. The court was 
then adjourned to Wednesday, November 19th, 1777, 
when the Attorney-General moved for judgment against 
Mr. Horne. The information was then read by order of 
the court. Mr. Horne then made an extended argument 
for arrest of judgment, in which he repeated much that 
he had said to the jury. The Attorney-General then 
made a vigorous reply and Horne answered him. Among 
other things, Horne claimed that there was not sufficient 
averment in the information that there was a rebellion in 
Massachusetts Bay, and that certain persons were em- 
ployed to quell that rebellion. If the information had 
averred it, it would have been necessary to prove it, and 
it could not have been proved as an existing fact on the 
19th day of April, 1775. Horne went into a critical dis- 
cussion of his proposition, which seemed to trouble Lord 
Mansfield considerably. Finally, Lord Mansfield said : 
" Mr. Attorney-General, have 5'^ou anything to say ? " 
The Attorney-General said : "It belongs to the defendant, 
I apprehend, to state what he can in his extenuation. " 
Then Mr. Horne said: "I shall state nothing in extenua- 
tion until your Lordship's decision has told me that there 
was a crime. I do not know where the crime lies at 
present. My objection goes that there is no crime averred 
in the information. It is impossible for me to extenuate 

26 



that which I do not acknowledge." Lord Mansfield: 
" Have you any affidavits of the circumstances, or any- 
thing?" Mr. Home: "None in the world." Lord 
Mansfield: '* Let him be committed. " Mr. Home: "Will 
your Lordship commit me before it appears whether I am 
even accused of any crime?" Lord Mansfield: "No. 
Then you may come up on Monday. You came volun- 
tarily now?" Mr. Home: "I did." Lord Mansfield: 
"Then come up voluntarily again. If you should find 
any precedents on either side, I wish you would give 
them to us." This was repeated to both the Attorney- 
General and Home two or three times. Home replied 
that he was not himself very likely to produce precedents. 

When the court again convened on November 24th, 
1777, Lord Mansfield read an elaborate opinion on the 
point raised by Home as to the sufficiency of the informa- 
tion. The decision was that the information was sufficient. 
Perhaps Home, upon hearing the judge's decision, felt as 
did the late Hon. Joseph Payne, of the Boston bar, who, 
when learnedly arguing a law question before a Supreme 
Court judge in Boston, was interrupted by the judge, 
who said: "Mr. Payne, that is not law. " "I know it," 
said Payne, "but it was before your Honor .spoke." I am 
inclined to believe that our Bar and our Ctnirts would be 
of the opinion that the missing averment was esi^ential, 
and that Home was right. 

In deciding the motion for arrest of judgment, Lord 
Mansfield read Captain Gould's report of the battle, and 
said : 

" Defendant alleges that the charge, as it stands upon 
the record, is insufficient in law to support any judgment; 
that there was no averment as to the state of the Massa- 
chusetts Colony at that time ; either that there were riots, 
insurrections, or rebellion ; that there were no averments 
that the King had sent any troops; that there was no 
averment that there was any skirmish or engagement, or 
how it began, or how it went on, or ended; and that it 
was not averred that the employment of the troops was 
by the King's authority. The only objection that had 
color in it was, what I mentioned last, that the employ- 
ment of the troops was not averred to be by the King's 
authority. I thought then, and said, that the averment 

27 



of the words being written ' of and concerning the 
King's Government ' was an answer, but no precedent 
was cited or alluded to on either side. I fancy the 
Attorney-General was surprised with the objection. But 
there was no precedent, and I could not say upon my 
memory whether precedents might not require some 
technical form of expression as to that medium through 
which words are averred to be written of the King's 
Government. And if any flaw had happened, technically 
or verbally, that were not at all founded in the sense or 
reason of the thing, I should, in this case, be of the same 
opinion that I was in the case of an outlawry, that the 
defendant ought to have the benefit of it. And therefore, 
I desired that we might think of it for some time, that 
precedents might be searched, and the books looked into. 
We have fully considered of it, and the precedents 
have been looked into, and we have fully considered the 
information and all the objections that were mentioned, 
and all the objections that we could think of; and we are 
all clearly of opinion, without any doubt, that the 
information is sufficient. An indictment or information 
must charge what, in law, constitutes the crime, with 
such certainty as must be proved, but that certainty may 
arise from necessary inference, in the manner settled in 
the case of the King and Lawley, in Strange. Plain 
words in a libel speak for themselves. If they are doubt- 
ful, their meaning must be ascertained by an inuendo. 
Here the words are plain, they want no inuendo. They 
are averred to be written ' of and concerning the King's 
Government and the employment of his troops.' The 
obvious meaning is, that the employment of the King's 
troops must be under his authority, and it necessarily is 
so, if the words relate to and are written of and concern- 
ing the King's Government. This must now be taken to 
be true, because the verdict finds it. Had the question 
arisen upon a demurrer, it must equally have been taken 
to be true. The gist of every charge of every libel con- 
sists in the person or matter of and concerning whom or 
which the words are averred to be said or written. In 
the King against Alderton the information was held bad, 
because it was not laid in the information ; it was not laid 
that the libel was of or concerning the justices of Suffolk. 

28 



Where the words are averred to be written of the King's 
Government, (there are several precedents), or of the 
government of the kingdom, or of the government, 
suppose, of the navy, as to anything further as to which 
they are also written through the medium of which they 
calumniate the King's Government, there is no form of 
expression technically necessary. And it cannot be, 
because there may be cases where the King's Govern- 
ment might be calumniated through an imputation upon 
the gross licentiousness of the King's troops. The ques- 
tion to be tried is, whether the words laid are written of 
the King's Government. It may vary the degree of 
mischief, guilt or malice, but it is immaterial as to the 
constitution of the crime upon the record, whether the 
words refer to something that has existed or are an entire 
fiction. Had Lexington been left out, or had any other 
place been mentioned, where there had been no skirmishes 
or engagement, instead of Lexington, it would, without 
any inuendo, have been equally a libel. It is the duty of 
the jury to construe plain words and clear allusions to 
matters of universal notoriety, according to their obvious 
meaning, and as everybody else who reads must under- 
stand them. But the defendant may give evidence to 
show that, in the case in question, they were used in a 
different or in a qualified sense. If no such evidence is 
given, the obvious meaning to every man's understanding 
must be decisive. Before this trial five several juries had 
found those words, from their necessary meaning, to be 
of and concerning the King's Government. Here, in this 
case, the defendant gave evidence, and the evidence he 
gave demonstrated that the words related to troops acting 
under the King's authority^ and consequently related to the 
King's Government. And I am more confirmed that 
upon this occasion there is little color of doubt of any flaw 
in the information, that in those five trials that I allude to, 
in one or other of them, a great variety of counsel of learn- 
ings eminence and ability were employed, lliey were called 
upon to pry, Math all the sharpness that they had, into the 
information, to put holes in it ; there were three judgments 
given upon conviction upon them, and no counsel saw or 
imagined there -was any flaw in it. Therefore we are all 
satisfied that the information is sufficient." 

29 



The Attorney-General then addressed the Court, 
saying, among other things, that Home had charged 
that the national force of this country has been employed 
in the murder of the King's subjects, for as meritorious 
an attribute as may be imputed to man, and he has speci- 
fied the time and place at which that was done. He then 
proceeded to characterize the libel in very severe terms. 
The Attorney-General said he believed it would be 
" totally impossible for the imagination of any man, how- 
ever shrewd, to state a libel more scandalous and base 
than in the fact imputed; more malignant and hostile to 
the country in which the libeller was born ; more danger- 
ous in example, if it was suffered to pass unpunished, 
than this which I have now stated to your Lordship. 
It was impossible," he said, "by any epithets to 
aggravate it. " He then reflected upon the conduct of 
the defendant, in seeming to glorify himself for his con- 
duct, as if adding crime to crime, and showed himself to 
be defiant of justice. The Attorney-General then referred 
to his duty to submit to the Court his views, as to what 
the punishment should be. He said that ' 'the punishments 
to be inflicted for misdemeanors of this sort have usually 
been of three different kinds : fine, corporal punish- 
ment by imprisonment, and infamy, by the judgment of 
the pillory. With regard to the fine, it is i:npo sibl? lo.' 
justice to make this .'^ort of punishment however the 
infamy will, always fall upon the offender; because it is 
well known that men who have more wealth, who have 
better and more respectful situations and reputations to 
be watched over, employ men in desperate situations, 
both of circumstances and character, in order to do that 
which serves their party purposes ; and when the punish- 
ment comes to be inflicted, this Court must have regard 
to the apparent situation and the circumstances of the 
man employed ; that is, of the man convicted, with regard 
to the pvmishment. With regard to imprisonment, that 
is a species of punishment not to be considered alike in 
all cases, but varies with the person who is to be the 
object of it, and so varies with the person that it would 
be proper for the judgment of the court to state circum- 
stances which will make the imprisonment fall lighter or 
heavier, as the truth is upon the person presented to the 

.30 



Court. The defendant has asserted that imprisonment 
was no kind of inconvenience to him; that it was a mere 
matter of circumstances whether it happened in one place 
or another, and that the longest imprisonment which this 
Court could inflict for punishment was not beyond the 
reach of accommodation. In this respect, therefore, 
imprisonment is not only, as with respect to the person, 
not an adequate punishment to the offence, but, the 
public are told, and told by a pamphlet which bears the 
reverend gentleman's name, (may be his name may have 
been forged to it), that it would be no punishment. I 
stated, in the third place, to your Lordship, the pillory 
to have been the usual punishment for this species of 
offence." 

The Attorney-General then went on to urge that the 
defendant should be punished by the judgment of the 
pillory. 

Mr. Home again addressed the Court, repeating some 
things that he had said before, and, among other things, 
said: "My Lords, the Attorney-General has attempted to 
alarm me with monstrous fines, long imprisonments, with 
infamous punishment. My Lords, infamy is as little 
acquainted with my name as with that of the gentleman's, 
or with your Lordships. I feel no apprehension from the 
pillory. I do feel some little pain, that a gentleman, taking 
advantage, should say and offer those things, unfounded 
in the appearance even of truth against me> which neither 
he, nor any other man like him, dare to insinuate in any 
other station but this. My Lords, I never in my life 
solicited a favor ; I never desired to meet with compas- 
sion." He further said: "My Lords, Mr. Attorney- 
General has said that I represented imprisonment as no 
kind of inconvenience. As no kind of inconvenience, my 
Lords, will not certainly be true, because the great luxury- 
of my life is a very small, but a very clean, cottage ; and, 
though imprisonment will be so far inconvenient to me, 
the cause of it will make it not painful." Again, he says: 
"My Lords, Mr. Attorney-General has done what I had 
before heard attempted to be done, with very great 
sorrow ; he has attempted to re-instate the Star Chamber. 
The fault he finds with it is only its rankness — before the 
prosecutions grew so rank in the Star Chamber (and 

31 



which rankness caused it to be abolished). I do not 
recollect the words of that act by which it was abolished, 
but, I am sure that its rankness alone is not the reason 
given. If that gentleman would lend me his memory, I 
should then repeat that none of the powers, nor none like 
them (your Lordships will know better the words) ever 
to be put in use again in that or any other court." He 
closed by saying: '' There are many other things which I 
might say to your Lordships; but, as I trust, and fully 
trust, that I shall still find a remedy, my Lords, against 
the present decision, I shall forbear saying one syllable 
in extenuation of what the Attorney-General has been 
pleased to charge me with, and leave your Lordships to 
pronounce your judgment, without the least consideration 
of me; without the smallest desire, too, that you should 
abate a hair from what you think necessary for the justice 
of my country. I shall leave it entirely to your Lordships' 
discretion." 

Then Mr. Justice Aston, sitting with Lord Mansfield, 
opened the vials of his British wrath upon sentencing 
Home, as follows : 

"John Home, Clerk, you stand convicted upon an 
information filed against you by his Majesty's Attorney- 
General, of writing and publishing, and causing to be 
written and published, a false, wicked and seditious libel, 
of and concerning his Majesty's Government and the 
employment of his troops. The record has been openly 
read in court from the record ;" and then, in referring to 
the terms of the same, the Court said: 

"Upon that the Court has now decided agreeably to 
the finding of the jury, and no man can really mistake 
the malicious meaning and insinuation of it ; it is a libel 
which contains a most audacious insult upon his Majesty's 
administration and Government, and the conduct of his 
loyal troops employed in America. It treats those dis- 
affected and traitorous persons who have been in arms in 
open rebellion against his Majesty, as faithful subjects; 
faithful to the character of Englishmen, and it falsely and 
seditiously asserts that for that reason only, they were 
inhumanly murdered by his Majesty's troops at Lexington 
and Concord. By this same libel, subscriptions, too, are 
proposed and promoted for the families of those very 

32 



rebels who fell in that cause, traitorously fighting against 
the troops of their lawful sovereign. This is the light in 
which this libel must appear to every man of sound and 
impartial understanding ; this is the plain and unartificial 
sense of it ; the contents of this libel have been too effect- 
ually scattered and dispersed by your means, as charged, 
and they have been inserted in divers and different news- 
papers ; the contents are too well known — I trust, abhorred 
— to need any repetition from me for the sake of observing 
further upon their malice, sedition and falsity. The 
Court hath considered of the punishment fit to be inflicted 
upon you for this offence, and the sentence of the Court 
is, that you do pay a fine to the King of 200 pounds; that 
you be imprisoned for the space of twelve months, and 
until that fine be paid, and that upon the determination of 
your imprisonment, you do find sureties for your good 
behaviour for three years, yourself in 400 pounds, and two 
sureties in 200 pounds each." 

Mr. Home: "My Lords, I am not at all aware of 
what is meant by finding sureties for good behaviour for 
three years. It is that part of the sentence that, perhaps, 
I shall find the most difficulty to comply with, because I 
do not understand it. If I am not irregular in entreating 
your Lordship to explain it to me; your Lordship, I 
suppose, would choose to have your sentences plainly 
understood, as I know not the nature of this suretyship. " 

Lord Mansfield said: "It is a common addition." 
Mr. Home said: " And it may be a common hardship. " 
Mr. Justice Aston: " Not to repeat offences of this sort." 
Lord Mansfield: "Any misdemeanor." Mr. Justice 
Aston: " Whatever shall be considered bad behaviour." 
Mr. Home: "If your Lordship will imprison me for 
these three years, I should be safer, because I cannot 
foresee but that the most meritorious action of my life 
may be considered to be of the same sort." Lord Mans- 
field: "You must be tried by a jury of your country and 
be convicted. You know it is a most constant addition. 
You know that, yourself, very well. Where are the 
tipstaves?" (Which, in modem phrase, would mean: 
"Officers, take the prisoner in charge."). 

Dr. Johnson, inquiring about it, said: " I hope they did 
not put the dog in the pillory ; he has too much literature 

33 



for that." Boswell says: ** Johnson added, 'Were Ito- 
make a new edition of my dictionary, I would adopts 
several of Mr. Home's etymologies.' " 

Lord Campbell, referring to the sentence, remarks: 
v Thurlow, in a manner which astonishes a modern 
Attorney-General, pressed that the defendant, who was an 
ordained clergyman of the Church of England, who was 
a scholar and a gentleman, should be set in the pillory." 

Thurlow, by urging punishment in the pillory, showed 
an unscrupulous and brutal mind. 

In less than a month after Mr, Home was sent to jail 
Thurlow was made Lord Chancellor of England, and sat 
on the woolsack in the House of Lords. 

All this shows the fierce resentment aroused by the 
supporters of the American cause in England. 

During his imprisonment he continued his favorite 
studies, and in 1779 applied for admission to the bar, but 
was not • eccived, because, as was the rule, he had been a 
clergyman. He continued active in political discussions 
for many years, being a candidate for the Commons twice, 
and defeated, and again a candidate, and elected, in 1801, 
but the parliament decided not to admit him, ruling that 
a clergyman could not thereafter sit in the House of 
Commons. 

As another incident in his life it may be stated, that 
Home was tried for high treason, mainly for his action as 
a member of the Constitutional Society, in expressing 
sympathy for the French Revolution. At this time Home 
did not ignore the maxim that ' ' he who acts as his own 
lawyer has a fool for a client," but was most ably 
defended by Gibbs, and by the brilliant Lord Erskine, 
and acquitted. 

Six authors have written the life of Home. Stephens, 
who wrote Home's life in 181 3, says of him, in reference 
to the trial for treason: "He conducted himself with 
great firmness and courage." It was abundantly shown 
that the charge of treason was trumped up by police spies, 
who tried to prove that Home was in a conspiracy to 
excite a similar revolution in England. 

From what has been stated it will be seen what was 
the temper of the British courts towards the American 
Revolution. Battles for the King were fought in British 

34 



forums as well as by British troops in America, British 
statesmen and courts could not see nor believe that what 
Chief Justice Mansfield at the trial of Home referred to 
as " the occasion at Lexington" portended the indepen- 
dence of the Colonies. Samuel Adams saw it, when he 
exclaimed: "Oh! what a glorious morning this, for 
America," as he heard the guns at Lexington. There 
was a feeling, no doubt, induced somewhat by many 
assurances from America, that independence was not the 
object, but rather to procure the repeal of obnoxious 
statutes and a more conciliatory policy by the home 
government. 

Up to a short time before Lexington, Franklin took 
this ground, and as late as the 5th of March, 1775, when 
Dr. Warren delivered the fifth annual oration on the 
Boston Massacre, in the crowded Old South Church, the 
orator said that he and his friends " were not seeking 
independence. But," he added, "there were men in 
that house who were. " In this audience were men of 
various opinions, including British army officers, who 
were expected to hear and report. Also, in Parliament, 
when the trial of Home and other proceedings were on 
and before, there was high debate, in which Chatham, 
and Camden, and North, and Mansfield were engaged, as 
to what should be the policy in American affairs. That 
the excitement and trend of public opinion reached the 
court room can not be doubted. The hope of speedily 
crushing the Americans, which had animated Lord Mans- 
field and induced the nation warmly to support the policy 
of the Government, was cruelly disappointed. Every 
fresh arrival showed the aspect of affairs to be more and 
more alarming, and in the course of a few months came 
the stunning intelligence that General Burgoyne had 
capitulated at Saratoga. Lord Campbell tells us that 
when the news of the surrender reached England the 
poignancy of Mansfield's grief, at seeing all his predictions 
falsified, was very great. 

Home was a sincere lover of freedom and justice, and 
naturally opposed the policy of his Government towards 
the Colonies. When he published his libel, in June 1775, 
there was little, if any, thought in the British mind of 
the momentous events that must follow the battle of 

35 



Lexington. Hence, the libel seemed most inopportune," 
unsupported, malicious and absurd. But Home espoused 
the American cause because he believed it was right in 
principle. At the same time it is not ncecessary to 
question the sincerity of the British Government in the 
great controversy. The conviction of Home may have 
been correct under British law ; he was guilty, perhaps, 
of a seditious attack on his Government, which was a 
violation of that law at that time. 

When the conflict at Lexington and Concord came 
there were expanding hopes in the Colonies as to the 
possible outcome. Paul Revere's spirited ride, upon 
warning the people, showed the rising spirit of the 
people, and was a spectacle of heroism and fidelity fitly 
commemorated in song by Longfellow and others. Here 
are some of Longfellow's lines : 

' ' In the books you have read, 
How the British regulars fired and fled ; 
How the farmers gave them ball for ball, 
From behind each fence and farm-yard wall. 
Chasing the red-coats down the lane, 
The crossing the fields to emerge again 
Under the trees at the turn of the road, 
And only pausing to fire and load. 
So, through the night, rode Paul Revere ; 
And so, through the night, went back this cry of alarm 
To every Middlesex village and farm, 
A cry of defiance, and not of fear. 
A voice in the darkness, a knock at the door, 
And a word that shall echo forevermore." 

In less than sixty days Bunker Hill followed. While 
these and other stirring events were arousing our people, 
the authorities of Great Britain were taking a different 
view and were solemnly of the opinion that it was 
rebellion without justification, and must be put down at 
every hazard. So when Lord Mansfield made his rulings, 
and charged the jury in the trial of Horne, he acted, 
great and able as he was, upon a mistaken view, not 
perhaps on the technical questions raised, but as to the 
real meaning of the American uprising. He could not 
comprehend that the Colonies were to be, "and of right 
ought to be, free and independent." 

36 



In referring to the severe sentence imposed upon Mr. 
Home, Lord Brougham said: "Thus a bold and just 
denunciation of the attack made upon our American 
brethren, which nowadays would rank among the very- 
mildest and tamest effusions of the periodical press, 
condemned him to prison for one year." He might 
have added, " and a loss in fine and costs of 1200 pounds." 

Our national Constitution provides that, "Congress 
shall make no law abridging the freedom of speech, or of 
the press." Our State Constitutions have similar pro- 
visions. We, who are thus protected by such safeguards 
of freedom, are apt to forget from what darkness we have 
emerged into the light, and how costly in blood and 
treasure our progress has been, through inquisitions and 
massacres. To appreciate this more fully, we must look 
back, if not further than, to the career of the Twelve 
English Judges, who under the inspiration of Stuart Kings, 
crushed freedom of thought and expression in the most 
tyrannical manner. Here, for instance, is William Pryn, 
a zealous Puritan and a learned lawyer, who wrote against 
the corrupt practices in theatres. He was brought to the 
Star Chamber in 1632, and Chief Justice Richardson, of 
bad repute, said: "Mr. Pryn, I do declare you to be a 
schism maker in the church, a sedition sower in the 
commonwealth, a wolf in sheep's clothing; in a word, 
omnium malorum nequissiinus " (the wickedest of all 
scoundrels). "I shall fine him 10,000 pounds, which is 
more than he is worth, yet he deserves it. I will not set 
him at liberty, no more than a mad dog, who though he 
cannot bite, yet will he foam, he is fit to live in dens with 
such beasts of prey as wolves and tigers, like himself ; 
therefore, I do condemn him to perpetual imprisonment, 
as those monsters that are not fit to live among men, nor 
to see light. I would have him branded in the forehead, 
slit in the nose, and his ears cropped, too." This part of 
the sentence was executed the 7th and loth of May, 1633, 
thirteen years after the landing of the Pilgrim Fathers. 
No wonder they left the country. 

Now comes the pious and venerable Richard Baxter, 
selected for a victim, and brought before Judge Jeffreys 
in the Star Chamber. Baxter's offence was that in a 
Commentary on the New Testament, he had complained 

37 



with some bitterness of the persecution which the 
Dissenters suffered. As Lord Macaulay tells the story, 
it was adjudged a crime not to use the Prayer Book. For 
this men had been driven from their homes, stripped of 
their property, and locked up in dungeons. An informa- 
tion was filed against poor Baxter, oppressed, as he was, 
by age and infirmities. The accused man begged for 
time to prepare his defence. Jeffreys burst into a storm 
of rage; "Not a minute," he cried, "to save his life; I 
can deal with saints, as well as with sinners. There stands 
Oates on one side of the pillory, and if Baxter stood on 
the other, the two greatest rogues in the Kingdom would 
stand together. " When the trial came on, at Guildhall, 
Baxter's friends, who loved and honored him, filled the 
court. At his side stood Doctor William Bates, one of 
the most eminent non-conformist divines. Two Whig 
barristers, of great note, Pollexpen and Wallop, appeared 
for the defendant. As Pollexpen began to address the 
jury, Jeffreys broke forth: " Pollexpen, I know you well, 
I will set a mark on you ; you are the patron of the faction. 
This is an old rogue, a schismatical knave, a hypocritical 
villian. He hates the Liturgy, he would have nothing 
but long-winded cant, without book." And so Jeffreys 
went on and called Baxter a dog, and swore that it would 
be no more than justice to whip such a villian through the 
city. Wallop, the associate barrister, then interposed, 
but was quickly silenced. Then Baxter himself attempted 
to put in a word, but was overwhelmed by a torrent of 
abuse, calling Baxter a "snivelling Presbyterian," and 
fixing his savage eye on Bates, said: "There is a doctor 
of the party at your elbow, but, by the grace of God 
Almighty, I will crush you all. " The noise of weeping 
was heard from some of those who surrounded Baxter. 
"Snivelling calves," said the Judge. He was sentenced 
to pay a fine of 500 marks, to lie in prison till he paid it, 
and be bound for good behaviovir for seven years. It is 
said Jeffreys wished him to be whipped at the tail of a 
cart. The King remitted his fine, but he was kept in 
prison three years and six months. It is obvious that in 
the two noted instances, cited from many, the accused 
were punished not so much for what they had written as 
for the fact that they were in favor of a larger personal 

38 



liberty than the tyrannical authoi4ties woiild concede. 
Time will not permit further citations showing the 
history of the fight that has been going on many years 
for freedom of thought and speech. Compared with 
numerous instances in prior history, the treatment of 
Home was moderate, yet a few years later it looked 
severe and outrageous. While Attorney-General Thurlow 
urged the pillory for Home, Mansfield did not inflict it. 
Tracing English history in a sequential sense in our own 
Colonial and later history, we find this despotic tendency 
to suppress personal freedom. Not to cite cases in our 
Colonial history, we had a noted one as late as in 1854, when 
an attempt was made in Boston, through indictment, to 
punish Rev. Theodore Parker and Wendell Phillips for 
expressing their opinions in Faneuil Hall as to the 
Fugitive Slave Law, and the methods used to enforce 
it in the case of Burns, a fugitive slave, which aroused a 
wide interest in Boston and throughout the country. In 
this famous case, the Federal Judges, though eager for 
the indictment, seem to have got tired of the job, and 
upon a motion to dismiss the indictment upon technical 
grounds, promptly granted the motion. 

The history of liberty, of freedom of speech, as known 
to English-speaking people, is the history of struggling 
oppressed human nature, whether in our own or in the 
mother country. It is the higher aspiration of manhood 
to live nearer to Him who is " the Author of Liberty." 

When the War of the Revolution came to an end, the 
British constitution, though the Colonies were lost, 
remained substantially as we now know it, saving, of 
course, such amendments as a conservative progress has 
permitted. The American Republic was wisely estab- 
lished upon the basis of a written constitution guaranteeing 
liberty to its people. Let us hope that both nations may 
help by arbitrations, and in other ways, and not hinder 
what is best for humanity, and that both may become 
more and more, as the years go on, co-operative powers 
in promoting the best civilization in the world. 



39 



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